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Mandatory Penis Monitoring Device Is Invasive — Appeals Court

NEW YORK — A federal appeals court ruled yesterday that a convicted sex offender does not have to submit to a penile plethysmograph as a condition of his supervised release from jail.

Penile plethysmography is a two-hour test that “involves placing a pressure sensitive device around a man’s penis, presenting him with an array of sexually stimulating images and determining his level of sexual attraction by measuring minute changes in his erectile responses.”

In the case at hand, the 2nd U.S. Circuit Court of Appeal ruled for David McLaurin, an Alabama resident who was convicted in 2001 for taking topless photos of his 13-year-old daughter for what McLaurin insisted was a photo shoot to help her modeling career.

But by pleading guilty to child pornography, McLaurin became subject to the rules and regulations of the federal Sex Offender Registration and Notification Act, known as SORNA.

SORNA requires offenders to “register, and keep the registration current, in each jurisdiction” in which they live.

McLaurin moved from Alabama to Vermont in 2011 after serving a few months in prison, and failed to properly fill out paperwork for the Vermont sex offender registry.

McLaurin was arrested for violating SORNA and sentenced to 15 months in prison and five years supervised release — one condition of release being that McLaurin may be subjected to “plethysmograph examinations, as directed by the probation officer.”

The appeals court had to determine whether or not the requested penile plethysmography, a condition of release, which is a “sufficiently serious invasion of liberty,” served any compelling government interest such as deterrence and protection of the public.

Here, the invasion of McLaurin’s privacy satisfied neither of those government interests.

The government argued that penile plethysmography is a useful form of correctional treatment for sex offenders who have an unusually high recidivism rate.

But that argument didn’t hold with the appeals court as the sentencing court in Vermont had previously ruled that McLaurin was “unlikely to reoffend again.”

The appeals court also found that to “consider the purported correlation between increasing penis size and recidivism to be strong, the correlation would be irrelevant.”

"In some cases, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be properly calibrated," the appeals court noted in its ruling. "The subject is then required to view pornographic images or videos while the device measures blood flow to the penis and measures the extent of any erection that the subject has."

The appeals court acknowledged a governmental interest in protecting the public but found a “clear distinction between penis measurement and other conditions of supervised release which are reasonably calculated [to accomplish that goal].”

"[T]here is a line at which the government must stop. Penile plethysmography testing crosses it,” the appeals court wrote.